Arthur T. La Prade, Attorney General of Arizona, applied for leave to file a tendered petition for writ of mandamus requiring Circuit Judge Wilbur and two district judges constituting a United States District Court in that state to dismiss as to petitioner two suits in equity to which the court, against his opposition, had made him a
[Argument of Counsel from pages 448-452 intentionally omitted] party defendant in substitution for his predecessor in office. We directed the judges to show cause why the leave prayed should not be granted, assigned the case for argument, directed briefs to be filed on or before the day set, stayed proceedings against petitioner, and directed the District Court to continue its term pending the final determination of petitioner's application. The judges made their return to the rule. On the appointed day, there being no material controversy as to controlling facts, we heard oral arguments upon the merits.
The act of the Arizona Legislature approved by the Governor, May 16, 1912, and on referendum by a majority of the voters of the State November 5, 1912 (chapter 43) being section 647, Revised Code 1928, declares that it shall be unlawful for any company operating a railroad in that state to run over its line any train consisting of more than 70 freight or other cars exclusive of caboose, or any passenger train of more than 14 cars and provides that any company that shall willfully violate any of the provisions of the act shall be liable to the state for a penalty of not less than $100 nor more than $1,000 for each offense and that such penalty shall be recovered, and suits therefor brought, by the Attorney General in the name of the state.
July 24, 1929, the Atchison, Topeka & Santa Fe Railway Company and the Southern Pacific Company respectively brought suits in the federal court above referred to against K. Berry Peterson, then Attorney General of the state. By its complaint each of the plaintiffs shows that it operates a line of railroad and trains for interstate transportation in and through Arizona, sets forth facts on which it claims that enforcement of the statute against it would violate the Commerce Clause (Const. art. 1, § 8, cl. 3), the due process clause of the Fourteenth Amendment, various provisions of the Interstate Commerce Act and other laws of the United States regulating interstate transportation by railroad (49 USCA § 1 et seq.), alleges that, if plaintiff shall operate consisting of more than the specified number of cars, the defendant unless enjoined will institute numerous prosecutions for recovery of the prescribed penalties, asserts that the damage and injury which it daily sustains by reason of the statute is great and irreparable and prays that defendant be temporarily and permanently enjoined.
In each case defendant answered and moved to dismiss the bill on the ground that the suit was one against the state prohibited by the Eleventh Amendment. The court consolidated the cases, refused temporary injunctions and denied defendant's motions to dismiss. Southern Pac. Co. v. Peterson, 43 F.(2d) 198. It then appointed a master who heard and reported the evidence together with his findings of fact, conclusions of law and recommendations for decrees in favor of plaintiffs. Defendant filed exceptions to, and moved to suppress, the report. The parties their briefs and the court, in accordance with their stipulation, set down the causes for hearing at San Francisco on February 8, 1933. In the meantime, January 3, 1933, defendant's term of office expired and the petitioner, La Prade, then became the Attorney General of the state. January 30, the plaintiffs delivered to petitioner a copy of an application to the court for an order substituting him as party defendant and gave notice that the application would be presented to the court at the time and place so fixed.